The Agony of Defeat

A while back, a lawyer friend was preparing for a trial that frightened him in the way trials frighten a criminal defense lawyer. No spooky ghosts, but the deeper fear that he wouldn’t be up to the task.

He needed another set of eyes and ears to challenge his tactics, and I was happy to help. One of the things criminal defense lawyers do is work ourselves into something of a confidence frenzy, believing that through sheer force of will if not brilliance, we can put together a persuasive defense that will save a person’s life. Even if we start out doubting ourselves, by the time we stand up for the opening, we must believe. Nobody can try a case without believing.

The downside of believing, of course, is that it often comes at the expense of thinking. We’re no longer capable of detached, rational scrutiny at that point. Instead, it’s guts and bravado. We put in the time thinking, and likely thought our case to death, and now it’s time to pull the trigger and fire. Like going on stage to sing, once the curtain goes up, you open your mouth and pray that sound comes out.

Throughout the trial, we spoke, and discussed things that went well, things that didn’t. We talked about surprises, as there are always surprises. We may know our case inside and out, but we have no clue what the other side has in their pocket, no matter what we think we know. A large part of what we do is be ready to adjust to accommodate surprises. It’s totally expected to be surprised, making surprises unsurprising.

And then comes time for summation, both the point where we put it all together and the last chance we have to talk to the jury.  It’s the lawyer’s moment to do his finest. After discussing the arguments, the presentation, the small nuanced ways to make a point that will be more effective than the alternatives, a funny thing happens. The lawyer begins to believe he can pull it off. There is no way he can stand before that jury and sell his defense without believing he’s right, and he does.

We fool ourselves, as we must. No one can persuade a jury if we haven’t already persuaded ourselves. So we suspend all doubt, in ourselves and in our cases, and make the magic happen. Then we sit down and wait.

The jury returns eventually, and we watch their faces. Do they look at the defendant? At us? Are they smiling or serious? The rule of thumb is happy juries don’t convict, though that isn’t always the case. This jury kept their head down, not looking toward the other side of the  courtroom and not so much as a smirk.  The verdict was one word.

He was crushed. Every decent trial lawyer takes a guilty verdict personally. Forget that we weren’t there when events happened and the evidence gathered, the statements made and the fingers pointed. It all happened without us, and we had no say in how strong a case it was. We don’t show up until all the stars are aligned, and then it’s our job to realign them to the extent possible.

No decent trial lawyer doesn’t second guess himself. After the guilty verdict, he wonders which of the million choices he made during trial were wrong. Inexperienced lawyers see choices as black and white, a tactical dichotomy. They aren’t. Every decision involves a spectrum of details, a thousand considerations, some large and some tiny, most of which have to be made in a split second. The lawyer runs through every one of them, doubting his actions and reactions. No decent lawyer thinks he tried a case perfectly. Not even the cases with two-word verdicts. We could always do better.

After the verdict, he went home and had a drink. Then he let me know that he failed to save a life that day. The combination of self-pity and frustration is both toxic and necessary. He needed to get it out, his sense of personal failure. An outsider might say the defendant lost his case because of the things he did.  A criminal defense lawyer says he lost the case because of the things he didn’t do. He didn’t find the way to beat it.

Now hear this: It sucks to lose, but a guilty verdict is as much an integral part of this job as anything else. We fight cases with everything we have, and still we sometimes lose. There are a million reasons why the jury didn’t acquit, and maybe no reason at all. Despite our faith in ourselves, we can’t change the facts, the law, the evidence. Despite our most persuasive presentation, we can’t change societal bias or individual ignorance. No matter how strongly we believe that we can pull this one out of the fire, sometimes we can’t and it’s not because we failed.

I told my friend to enjoy his drink, take comfort in the effort he put in, the depth of thought and concern, and ultimately the representation he provided his client. He gave the defendant every possible chance to win. That’s all he could do. Time to let go of religion and return to reality. We’re just lawyers. We can’t turn water into wine.

Take the night and feel bad about it, I said, and tomorrow put it out of your head. Tomorrow, you go back to the trenches and take up the next battle, and you can’t do that with doubts of the day before. Wallow for a while, but then it’s over. There is more work to do, and as much as it sucks to be on the losing end of a trial, the next guy needs you to fight for him as well, and nobody can mount the good fight licking his wounds from the last fight.

Criminal defense lawyers don’t have the luxury of wallowing too long. There’s too much work to be done. My friend was back in court the next morning, thinking only of the defendant standing next to him and how he was going to kick the prosecution’s butt this time.

5 comments on “The Agony of Defeat

  1. Pingback: Content | a public defender

  2. Pingback: You Can't Win Them All | RHDefense: The Law Office of Rick Horowitz

    1. SHG Post author

      A curious comment. First, you’re welcome. Second you’re way behind on SJ and only read the post because of Rick wrote a followup? Ouch.

  3. Samuel Harrison

    All very true. I have been a criminal defense lawyer for over 30 years, and I go through what you describe every time I try a case. I tell young(er) lawyers to remember two things about defending a criminal case. The first one is that criminal defense is a lot like playing poker; you can be very good at the game, but a lot depends on the hand you’re dealt. The second thing to remember is that any time you are defending someone charged with a crime you have two clients to defend: the person sitting next to you and the Constitution. Every time you force the state to justify a search, defend the police officer’s interrogation tactics, or call their hand on the way they are selecting a jury you remind the prosecutor and the cops that they cannot and will not be allowed to break the law in the name of enforcing it.

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